JOSEF KAMEHOZU v. BASEBA TJIPETEKERA, 2019 FC 861

Date: 20190625 Docket: IMM-3919-19 Citation: 2019 FC 861 Ottawa, Ontario, June 25, 2019 PRESENT: Mr. Justice Roy BETWEEN: JOSEF KAMEHOZU AND BASEBA TJIPETEKERA Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] These applicants seek in extremis the stay of their removal to their country of nationality, Namibia, scheduled for tomorrow, June 26, 2019. [ 2 ] The Court, through the registry officer, tried to reach each of the applicants a total of five times between 12:30 and 12:45, Edmonton time. Messages were left in voice boxes.

Nevertheless, the applicants were not answering, in spite of the fact that Ms. Tjipetekera responded to the Court’s direction of June 24 that their motion for a stay would be heard on June 25. Indeed she provided two telephone numbers where to reach them for the hearing. [ 3 ] As a result, after conferring with counsel for the Minister, the Court chose to hear the Crown and decide the matter on the basis of the written record filed by the applicants. [ 4 ] The applicants are not represented by counsel. Their motion record is rudimentary.

The Crown, by a letter dated June 24, asked that the Court decline to hear the applicants’ motion because the applicants have not been diligent and have waited beyond what is reasonable to make their application for a stay. Moreover, it is difficult to understand the facts that underpin the motion for the stay. [ 5 ] The Court has some sympathy for the position in which the Crown finds itself given the material that was put before the Court in order to seek the said stay. Indeed, the attitude of the applicants is deserving of their motion being dismissed without even being heard.

Be that as it may, I chose to hear the matter, including by allowing the Crown to make submissions about how inappropriate it would be to hear the matter on its merits ( Beros v Canada (Citizenship and Immigration) , 2019 FC 325 ). The fact that the applicants chose to be absent for the hearing of their motion is just one more reason for declining to consider further the matter.

Nevertheless, having heard the submissions of counsel as well as considered the submissions made in writing by the applicants on the merit of their stay application, I have come to the conclusion that this matter can be resolved on the basis that the applicants have not been able to satisfy the tripartite test applicable in a case like this. [ 6 ] The applicants must satisfy each of the elements of the test and they are: Is there a serious question to be decided in the underlying application for judicial review? Is there irreparable harm that will be suffered?

The balance of convenience favours the applicants? [ 7 ] It appears that Ms. Tjipetekera came to Canada in March 2011 and sought refugee status. Her application was denied and so was her application for authorization and judicial review. As for Mr. Kamehozu, he came at a different time (August 2011) and his refugee application was also denied. The two applicants have been living in a common-law relationship since December 2015 and they have one child. Ms.

Tjipetekera is now also pregnant. [ 8 ] The applicants concede that there has been a warrant for their arrest such that in March 2019, they presented themselves to the Canada Border Security Agency, indicating that they were willing to go back home voluntarily. In fact, Mr. Kamehozu evaded leaving Canada as ordered twice and Ms. Tjipetekera once before. They were advised on June 17, 2019 that tickets have been booked for their removal. It appears that the Republic of Namibia has issued emergency travel certificates for the applicants which are valid until July 14, 2019.

The reason for those emergency travel certificates is that the passports of the two applicants have expired. A Canadian passport for their child was issued on June 10, 2019. [ 9 ] What appears to be an application for leave and judicial review was filed on June 24, 2019. On the face of the document, the judicial review application is with respect to the decision to refuse granting refugee status to, presumably, the male applicant. However, none of the fundamental requirements of an application for leave is present ( Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22 ).

What is clear on the other hand is that the applicants seek to resist being deported back to their country of nationality. That is simply not enough. There is no indication whatsoever of what the grounds could be for the judicial review application. Indeed, the male applicant would need to seek an extension of time for the application to be considered and the female applicant has already seen her attempt at judicial review be denied. She could not seek a new judicial review.

[ 10 ] On the face of the record, there is absolutely no way the applicants satisfied the requirements that there be a serious issue to be determined in the underlying judicial review application. The record is devoid of any such grounds, let alone that there be a serious issue in any of those grounds. As such, the stay application must be dismissed. [ 11 ] The applicants have also submitted that Baseba Tjipetekera is confirmed as being pregnant.

It is purported that, on June 18, 2019, a family physician confirmed having seen this applicant and the family physician simply says that " “(s)he is advised to avoid flying for now” " . In the circumstances, this would not have been sufficient in order to establish irreparable harm, as required by the tripartite test. The two-line certificate is not even signed and there are no details as to what justifies the weak advice to avoid flying. [ 12 ] As for the balance of convenience, the applicants are without status in Canada and have not been with status for quite some time.

They have evaded leaving the country before and warrants for their arrest had to be issued.

Section 48 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , provides that once a removal order is enforceable, the foreign national " “must leave Canada immediately and the order must be enforced as soon as possible” " . With a warrant pending for the arrest of the applicants earlier this year, and previous decisions to evade leaving Canada, it can be said that there is a public interest in enforcing the order to leave the country. At this stage, the balance of convenience favours the government. As a result, the motion for a stay of the execution of the removal order is dismissed.

ORDER in IMM-3919-19 THIS COURT ORDERS that : 1 . The motion for a stay of the execution of the removal order is dismissed. “Yvan Roy” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3919-19 STYLE OF CAUSE: JOSEF KAMEHOZU AND BASEBA TJIPETEKERA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: BY TELECONFERENCE BETWEEN OTTAWA (ONTARIO) AND EDMONTON (ALBERTA) DATE OF HEARING: june 25, 2019 ORDER AND REASONS: ROY J. DATED: june 25, 2019 APPEARANCES : Galina Bining For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Edmonton, Alberta For The Respondent